Obama should implement LIBERTAD as Congress intended.

This week marks the 18th anniversary of the downing of two U.S. civilian planes by the Cuban military over international waters. On February 24, 1996, Cessnas flown by members of the organization Brothers to the Rescue were patrolling north of Havana for Cuban refugees, who risked life and limb at sea in makeshift craft in search of freedom. Cuban fighter pilots in Russian MiGs encircled the planes and attacked. The planes disintegrated. Killed were three Americans: Carlos Costa, Armando Alejandre Jr., and Mario de la Peña, along with U.S. resident Pablo Morales.

The killing of Americans once again brought home the true nature of the Cuban regime. The political repercussions were felt in Washington, D.C. Until then, the Clinton administration had thought, as the Obama administration thinks today, that the U.S. could negotiate with the Cuban government. But facing the political embarrassment of the downed aircraft, Clinton reversed course and signed the Cuban Liberty and Democratic Solidarity Act (LIBERTAD), which had bipartisan support. It was as far as the Clinton administration was willing to go in taking a hard line on Cuba.

Implementation of LIBERTAD, also known as Helms-Burton, was haphazard at best. The air attack was soon forgotten. A mere two years after it, many had turned their focus to easing sanctions and expanding relations with Havana. That effort continued despite the arrest of the Wasp network of Cuban spies in 1998, the expulsions of Cuban “diplomats” for espionage, and the arrests of Defense Intelligence Agency analyst Ana Belén Montes in 2001, and, more recently, of State Department officials Kendall and Gwendolyn Myers for spying for Cuba. These are just the ones we know about.

The trend toward engagement and appeasement of the Cuban dictatorship has worsened under President Obama. His national-security team has eased economic sanctions in several key areas without demanding or securing any concessions whatsoever from Havana. This is backwards. Like Iran and North Korea, Cuba is a regime that calls for a firm hand, not a velvet glove.

In his first inaugural address, President Obama said, “To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history, but that we will extend a hand if you are willing to unclench your fist.” The rhetoric does not match up with the action. The Obama administration has not only given an economic lifeline to this pariah state but also lent it diplomatic legitimacy. The president chose a widely publicized event to make his point and shook dictator Raúl Castro’s hand. Meanwhile, back in the island gulag, the crackdown against pro-democracy advocates has intensified; American citizen Alan Gross was taken hostage in December 2009 and is still being held in a Cuban prison.

U.S. law and policy are supposed to isolate the Cuban government economically while supporting the Cuban people. Cuba desperately needs sanctions eased to secure more dollars and access to the global financial system. The U.S. has an opportunity to leverage that need to press for true democratic change and advance U.S. interests. The Helms-Burton law provides a clear roadmap. Easy? No, but not impossible, if the political will exists.

In LIBERTAD, Congress called on the president to fully enforce, through the Departments of State and Justice, existing regulations and deny visas to Cuban nationals who represent or are employees of the Cuban government or of Cuba’s Communist party. Unfortunately, such travel continues essentially unfettered. The regime uses both diplomatic and unofficial cover to spy on the United States and make business deals that contravene U.S. law and policy.

LIBERTAD prohibits indirect financing of the Castro regime and bars aid to governments that provide assistance to the Cuban dictatorship or engage in barter-type agreements or non-market-based trade with it. However, many nations that have received U.S. foreign economic aid, whose debt to the U.S. has in some cases been reduced or forgiven, have turned around and from their improved condition provided non-market-based relief and benefits to Havana. Those governments should be held accountable and forced to choose between expanding their relationship with the U.S. or with the pariah regime in Cuba.

Requirements that the president report to Congress concerning the intelligence activities of the Russian Federation in Cuba are also stipulated by LIBERTAD. While the Russians are assumed to have withdrawn from the signals facility at Lourdes, Cuba, in 2002, the Kremlin has been expanding its economic, military, and intelligence ties with its Cold War client state in other ways. Just last summer the Black Sea Fleet’s flagship cruiser, the Moskva, the Northern Fleet’s Vice Admiral Kulakov destroyer, and a fuel tanker all docked in Havana, signaling a strengthening of the Russian–Cuban relationship; a Russian warship was reported to have docked in Havana only yesterday. Combined with Moscow’s giving safe haven to Edward Snowden, reports that it now wants to return to the Lourdes listening post to enhance its capabilities of eavesdropping on the U.S. make it critical for the Obama administration to revisit the Helms-Burton language about monitoring Russian intelligence activities in Cuba.

The national-security community continues to rely on assessments developed, directed, or influenced by Americans convicted of spying for Havana, but policymakers need updated estimates on the full spectrum of Cuban-regime activities that pose a threat to U.S. security, interests, and allies. All damage assessments relating to the Wasp network, as well as to the Ana Belén Montes and the Myers cases, should be released to the congressional intelligence, foreign-affairs, and defense committees and be available for review by their members. No further Wasp-network spies should be released to Cuba, particularly since the Havana authorities protect fugitives from U.S. justice, including murderers and kidnappers.

The president should work to reverse the fiasco of the U.S.’s agreement to revoke Cuba’s suspension from the Organization of American States (OAS) in 2009. He should follow Section 109 of LIBERTAD, which requires the president to instruct the U.S. permanent representative to the OAS to secure support from other member states in urging the Havana regime to allow the immediate and unrestricted deployment of independent human-rights monitors throughout the island and to allow visits by the Inter-American Commission on Human Rights.

Most important, the administration should turn its attention to securing justice for Americans. In multilateral forums, it should pressure Havana to unconditionally release Alan Gross and should obtain immediate INTERPOL Red Notices for the three Cuban air-force officials indicted for the wanton killing of Americans in February 1996. Since these pilots acted under the orders of Fidel and Raúl Castro, the Castro brothers should also be indicted and prosecuted in the U.S. Further actions should be taken under Section 116(B)(3) of LIBERTAD, which urges the president to seek, in the International Court of Justice, indictments for this attack carried out by the Cuban regime and defined as “an act of terrorism” in LIBERTAD. Since Fidel Castro is not the titular head of state, there is no longer an excuse for doing nothing.

Every nation’s transition to freedom, rule of law, and democracy is unique. What works in Kiev may or may not work in Caracas or Damascus. For Cuba, the road has been long, and the days ahead are tough. The roadmap that the U.S. has had in place since the late 1990s should be implemented as Congress intended. With respect to the shooting down of Brothers to the Rescue, the president should at least declassify all records relating to the incident. These documents will afford the families of the victims an opportunity to seek justice in international tribunals. They will do what presidents have refused to do: face evil head-on and ensure that the United States is on the right side of history.

— Jason Poblete is an attorney in private practice and co-chair of the National Security Committee of the ABA Section on International Law. Yleem Poblete is former chief of staff of the House of Representatives’ Foreign Affairs Committee and a fellow at the Catholic University of America. Both worked on Cuba-policy oversight during their time on the Hill.